Part 4Inspections

Occupational health and safety ## Part 1—Preliminary #### 1 Objects The objects of this Schedule are, in relation to facilities located in Commonwealth waters: (a) to secure the health, safety and welfare of persons at or near such facilities; and (b) to protect persons at or near such facilities from risks to health and safety arising out of activities being conducted at such facilities; and (c) to ensure that expert advice is available on occupational health and safety matters in relation to such facilities; and (d) to promote an occupational environment for members of the workforce at such facilities that is adapted to their needs relating to health and safety; and (e) to foster a consultative relationship between all relevant persons concerning the health, safety and welfare of members of the workforce at such facilities. #### 2 Definitions In this Schedule, unless the contrary intention appears: > accident includes the contraction of a disease. > associated offshore place, in relation to a facility, means any offshore place near the facility where activities (including diving activities) relating to the construction, operation, maintenance or decommissioning of the facility take place, but does not include: (a) another facility; or (b) a supply vessel, offtake tanker, anchor handler or tugboat; or (c) a vessel, or structure, that is declared by the regulations not to be an associated offshore place. > clause means a clause of this Schedule. > Commonwealth waters has the same meaning as in Part IIIC. > contract includes an arrangement or understanding. > contractor has the meaning given by clause 2D. > contravention, if the contravention is an offence against this Schedule or the regulations, includes an offence against: (a) section 6 of the Crimes Act 1914; or (b) section 11.1, 11.4 or 11.5 of the Criminal Code. > dangerous occurrence means an occurrence declared by the regulations to be a dangerous occurrence for the purposes of this definition. > designated work group means a group of members of the workforce at a facility that is established as a designated work group under clause 12, or that group as varied in accordance with that clause. > employee, in relation to an employer, means an employee of that employer. > employer means an employer who carries on an activity at a facility. > facility means a facility as defined by clause 2A, and: (a) includes a facility (as defined by clause 2A) that is being constructed or installed; and (b) except in the definition of associated offshore place, includes an associated offshore place in relation to a facility (as defined by clause 2A). > group member, in relation to a designated work group at a facility, means a member of the workforce at that facility included in that designated work group. > improvement notice means an improvement notice issued under subclause 36(1). > inspection means an inspection conducted under Part 4 of this Schedule. For this purpose, an inspection may include an investigation or inquiry. > member of the workforce, in relation to a facility, means an individual who does work at the facility, whether as an employee of the operator of the facility or of another person, or as a contractor of the operator or of another person. > offshore petroleum operations has the same meaning as in Part IIIC. > OHS inspector means an OHS inspector appointed under section 150YL. > operator, in relation to a facility or proposed facility, means the person who, under the regulations, is taken to be the operator of that facility or proposed facility. > operator’s representative at a facility means a person present at the facility in compliance with the obligations imposed on the operator by clause 2B. > own includes own jointly or own in part. > paragraph means a paragraph of a provision of this Schedule. > Part means a Part of this Schedule. > plant includes any machinery, equipment or tool, or any component. > premises includes the following: (a) a structure or building; (b) a place (whether or not enclosed or built on); (c) a part of a thing referred to in paragraph (a) or (b). > prohibition notice means a prohibition notice issued under subclause 35(1). > proposed facility means a facility proposed to be constructed, installed or operated. > recovery, in relation to petroleum, includes all processes directly or indirectly associated with its recovery. This definition does not, by implication, limit the meaning of the expression recovery when used in a provision of this Act other than this Schedule. > registered organisation means an organisation within the meaning of the Workplace Relations Act 1996. > regulated business premises means: (a) a facility; or (b) premises that are: (i) occupied by a person who is the operator of a facility; and (ii) used, or proposed to be used, wholly or principally in connection with offshore petroleum operations. > regulations means regulations made under section 157 for the purposes of this Schedule. > reviewing authority means the Australian Industrial Relations Commission. > work means work offshore that is directly or indirectly related to the construction, operation, maintenance or decommissioning of a facility. > workforce representative means: (a) in relation to a person who is a member of the workforce at a facility—a registered organisation or a transitionally registered association (within the meaning given by Schedule 10 to the Workplace Relations Act 1996) of which that person is a member, if the person is qualified to be a member of that organisation because of the work the person performs at the facility; or (b) in relation to a designated work group or a proposed designated work group—a registered organisation or a transitionally registered association (within the meaning given by Schedule 10 to the Workplace Relations Act 1996) of which a person who is, or who is likely to be, in the work group is a member, if the person is qualified to be a member of that organisation because of the work the person performs, or will perform, at a facility as a member of the group. > work group employer, in relation to a designated work group at a facility, means an employer, other than the operator, of one or more group members. > workplace, in relation to a facility, means either the whole facility or any part of the facility. #### 2A Definitions and other provisions relating to facilities Vessels or structures that are facilities (1) Subject to subclauses (4) and (5), a vessel or structure (whether floating or fixed) is taken to be a facility for the purposes of this Schedule, whether or not it is capable of independent navigation, while that vessel or structure: (a) is located at a site in Commonwealth waters; and (b) is being used, or prepared for use, at that site: (i) for the recovery of petroleum, for the processing of petroleum, or for the storage and offloading of petroleum, or for any combination of those activities; or (ii) for the provision of accommodation for persons working on another facility, whether connected by a walkway to that other facility or not; or (iii) for drilling or servicing a well for petroleum or doing work associated with the drilling or servicing process; or (iv) for laying pipes for petroleum, including any manufacturing of such pipes, or for doing work on an existing pipe; or (v) for the erection, dismantling or decommissioning of a vessel or structure referred to in a previous subparagraph of this paragraph; or (vi) for any other purpose related to offshore petroleum operations that is prescribed for the purposes of this subparagraph. (2) For the purposes of subclause (1), a vessel or structure that is located offshore for the purpose of laying pipes as described in subparagraph (1)(b)(iv) is taken to be located at a site, despite the fact that the vessel or structure moves as the pipe laying process proceeds. (3) A vessel or structure used for a purpose referred to in subparagraph (1)(b)(i) includes: (a) any wells and associated plant and equipment by means of which petroleum processed or stored at the vessel or structure is recovered; and (b) any pipe or system of pipes through which petroleum is conveyed from a well to the vessel or structure; and (c) any secondary line associated with the vessel or structure. Vessels or structures that are not facilities (4) Despite subclause (1), a vessel or structure is taken not to be a facility if it is: (a) an offtake tanker; or (b) a tug or an anchor handler; or (c) a vessel or structure used for supplying a facility or otherwise travelling between a facility and the shore; or (d) a vessel or structure used for any purpose such that it is declared by the regulations not to be a facility. Meaning of use for a particular purpose (5) In determining when a vessel or structure that has the potential to be used for one or more of the purposes referred to in paragraph (1)(b) is in fact being so used, the vessel or structure is to be taken: (a) to commence to be so used only at the time when it arrives at the site where it is to be so used and any activities necessary to make it operational at that site are begun; and (b) to cease to be so used when operations cease, and the vessel or structure has been returned either to a navigable form or to a form in which it can be towed to another place. Pipelines that are facilities (6) Each of the following is taken to be a facility for the purposes of this Schedule: (a) a pipeline licensed under Division 4 of Part III; (b) if a pipeline licensed under Division 4 of Part III conveys petroleum recovered from a well without the petroleum having passed through another facility—that pipeline, together with: (i) that well and associated plant and equipment; and (ii) any pipe or system of pipes through which petroleum is conveyed from that well to that pipeline. (7) In paragraph (6)(b): > facility does not include a pipeline. #### 2B Operator must ensure presence of operator’s representative (1) The operator of a facility must ensure that, at all times when one or more individuals are present at a facility, there is also present an individual (the operator’s representative at the facility) who has day‑to‑day management and control of operations at the facility. Penalty: 50 penalty units. (2) The operator must ensure that the name of the operator’s representative at the facility is displayed in a prominent place at the facility. Penalty: 50 penalty units. (3) Subclause (1) does not imply that, if the operator is an individual, the operator’s representative at the facility may not be, from time to time, the operator. #### 2C Health and safety of persons using an accommodation facility For the avoidance of doubt, a reference in this Schedule to the occupational health and safety of a person includes a reference to the health and safety of a person using an accommodation facility provided for the accommodation of persons working on another facility. #### 2D Contractor For the purposes of this Schedule, if an individual does work at a facility under a contract for services between: (a) a person (the relevant person); and (b) either: (i) the individual; or (ii) the employer of the individual; the individual is taken to be a contractor of the relevant person. ## Part 2—Occupational health and safety ### Division 1—General duties relating to occupational health and safety #### 3 Duties of operator (1) The operator of a facility must take all reasonably practicable steps to ensure that: (a) the facility is safe and without risk to the health of any person at or near the facility; and (b) all work and other activities carried out on the facility are carried out in a manner that is safe and without risk to the health of any person at or near the facility. Penalty: 1,000 penalty units. (2) Without limiting the generality of subclause (1), the operator of a facility must: (a) provide and maintain a physical environment at the facility that is safe and without risk to health; and (b) provide and maintain adequate facilities for the welfare of all members of the workforce at the facility; and (c) ensure that any plant, equipment, materials and substances at the facility are safe and without risk to health; and (d) implement and maintain systems of work at the facility that are safe and without risk to health; and (e) implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies at the facility; and (f) provide all members of the workforce, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their activities in a manner that does not adversely affect the health and safety of persons at the facility; and (g) monitor the health and safety of all members of the workforce and keep records of that monitoring; and (h) provide appropriate medical and first aid services at the facility; and (i) develop, in consultation with members of the workforce and any workforce representatives, a policy, relating to occupational health and safety, that will: (i) enable the operator and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational health and safety of persons at the facility; and (ii) provide adequate mechanisms for reviewing the effectiveness of the measures. Penalty: 1,000 penalty units. (3) Paragraph (2)(i) does not require the operator of a facility to engage in consultations with a workforce representative unless a member of the workforce at the facility has requested the workforce representative to be involved in those consultations. (4) A policy relating to occupational health and safety referred to in paragraph (2)(i) that is developed in consultation with members of the workforce and one or more workforce representatives must provide for the making of an agreement between: (a) on the one hand—the operator; and (b) on the other hand: (i) the members of the workforce; and (ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be a party to that agreement—that workforce representative; that: (c) provides appropriate mechanisms for continuing consultation between the parties to the agreement; and (d) provides for such other matters (if any) as are agreed between the parties to the agreement. #### 4 Duties of persons in control of parts of facility or particular work (1) A person who is in control of any part of a facility, or of any particular work carried out at a facility, must take all reasonably practicable steps to ensure that: (a) that part of the facility, or the place where that work is carried out, is safe and without risk to health; and (b) if the person is in control of particular work—the work is carried out in a manner that is safe and without risk to health. Penalty: 1,000 penalty units. (2) Without limiting the generality of subclause (1), a person who is in control of any part of a facility, or of any particular work carried out at a facility, must: (a) ensure that the physical environment at that part of the facility or at the place where the work is carried out is safe and without risk to health; and (b) ensure that any plant, equipment, materials and substances at or near that part of the facility or that place, or used in that work, are safe and without risk to health; and (c) implement and maintain systems of work at that part of the facility, or in carrying out work at that place, that are safe and without risk to health; and (d) ensure a means of access to, and egress from, that part of the facility or that place that is safe and without risk to health; and (e) provide all members of the workforce located at that part of the facility or engaged on that work, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health. Penalty for contravention of this subclause: 1,000 penalty units. #### 5 Duties of employers (1) An employer must take all reasonably practicable steps to protect the health and safety of employees at a facility. Penalty: 1,000 penalty units. (2) Without limiting the generality of subclause (1), an employer must: (a) provide and maintain a working environment that is safe for employees and without risk to their health; and (b) ensure that any plant, equipment, materials and substances used in connection with the employees’ work are safe and without risk to health; and (c) implement and maintain systems of work that are safe and without risk to health; and (d) provide a means of access to, and egress from, the employees’ work location that is safe and without risk to health; and (e) provide the employees, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health. Penalty: 1,000 penalty units. (3) A person has, in respect of a contractor of that person, the same obligations that an employer has under subclauses (1) and (2) in respect of an employee of that employer, but only in relation to: (a) matters over which the first‑mentioned person has control; or (b) matters over which the first‑mentioned person would have had control apart from express provision to the contrary in a contract, being matters over which the first‑mentioned person would, in the circumstances, usually be expected to have had control. (4) Without limiting the generality of subclause (1) so far as it applies in relation to employees, an employer must take all reasonable steps to monitor the health and safety of the employees and to keep records of that monitoring. Penalty for contravention of this subclause: 1,000 penalty units. #### 6 Duties of manufacturers in relation to plant and substances (1) A manufacturer of any plant that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonable steps: (a) to ensure that the plant is so designed and constructed as to be, when properly used, safe and without risk to health; and (b) to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the plant; and (c) to make available, in connection with the use of the plant at a facility, adequate written information about: (i) the use for which it is designed and has been tested; and (ii) details of its design and construction; and (iii) any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe and without risk to health. Penalty: 200 penalty units. (2) A manufacturer of any substance that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonable steps: (a) to ensure that the substance is so manufactured as to be, when properly used, safe and without risk to health; and (b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the substance; and (c) to make available, in connection with the use of the substance at a facility, adequate written information concerning: (i) the use for which it is manufactured and has been tested; and (ii) details of its composition; and (iii) any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe and without risk to health; and (iv) the first aid and medical procedures that should be followed if the substance causes injury. Penalty: 200 penalty units. (3) If: (a) plant or a substance is imported into Australia by a person who is not its manufacturer; and (b) at the time of the importation, the manufacturer of the plant or substance does not have a place of business in Australia; the first‑mentioned person is, for the purposes of this clause, taken to be the manufacturer of the plant or substance. (4) This clause does not affect the operation of the Trade Practices Act 1974, or of any other law of the Commonwealth, a State or a Territory that imposes an obligation on a manufacturer in respect of defective goods or in respect of information to be supplied in relation to goods. #### 7 Duties of suppliers of facilities, plant and substances (1) A supplier of a facility, or of any plant or substance that the supplier ought reasonably to expect will be used by members of the workforce at a facility, must take all reasonably practicable steps: (a) to ensure that, at the time of supply, the facility, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health; and (b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health or safety that may arise from the condition of the facility, plant or substance; and (c) to make available: (i) in the case of a facility—to the operator of a facility; and (ii) in the case of plant or substance—to the person to whom the plant or substance is supplied; adequate written information, in connection with the use of the facility, plant or substance, as the case requires, about: (iii) the condition of the facility, plant or substance at the time of supply; and (iv) any risk to the health and safety of members of the workforce at the facility to which the condition of the facility, plant or substance may give rise unless it is properly used; and (v) the steps that need to be taken in order to eliminate such risk; and (vi) in the case of a substance—the first aid and medical procedures that should be followed if the condition of the substance causes injury to a member of the workforce at the facility. Penalty: 200 penalty units. (2) For the purposes of subclause (1), if a person (the ostensible supplier) supplies to a person either a facility, or any plant or substance that is to be used by members of the workforce at a facility, and the ostensible supplier: (a) carries on the business of financing the acquisition or the use of goods by other persons; and (b) has, in the course of that business, acquired an interest in the facility, or in the plant or substance, from another person (the actual supplier), solely for the purpose of financing its acquisition by, or its provision to, the person to whom it is finally supplied; and (c) has not taken possession of the facility, plant or substance, or has taken possession of the facility, plant or substance solely for the purpose of passing possession of the facility, plant or substance to the person to whom it is finally supplied; a reference in subclause (1) to a supplier is, in relation to the facility, plant or substance referred to in this subclause, to be read as a reference to the actual supplier and not as a reference to the ostensible supplier. (3) This clause does not affect the operation of the Trade Practices Act 1974, or of any other law of the Commonwealth, a State or a Territory that imposes an obligation in respect of the sale or supply of goods or in respect of the information to be supplied in relation to goods. #### 8 Duties of persons erecting facilities or installing plant (1) A person who erects or installs a facility, or erects or installs any plant at a facility, must take all reasonably practicable steps to ensure that the facility or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to health. Penalty: 200 penalty units. (2) This clause does not affect the operation of the Trade Practices Act 1974, or of any other law of the Commonwealth, a State or a Territory that imposes an obligation in respect of the erection or installation of goods or the supply of services. #### 9 Duties of persons in relation to occupational health and safety (1) A person at a facility must, at all times, take all reasonably practicable steps: (a) to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of that person or of any other person at or near the facility; and (b) in respect of any obligation imposed on the operator or on any other person by or under this Schedule or the regulations—to cooperate with the operator or that other person to the extent necessary to enable the operator or that other person to fulfil that obligation; and (c) to use equipment that is: (i) supplied to the person by the operator, an employer of the person or any other person having control of work at a facility (the equipment supplier); and (ii) necessary to protect the health and safety of the person, or of any other person at or near the facility; in accordance with any instructions given by the equipment supplier, consistent with the safe and proper use of the equipment. Penalty: 50 penalty units. (2) Subclause (1) does not imply that the choice or manner of use, or choice and manner of use, of equipment of the kind referred to in subparagraph (1)(c)(ii) is not a matter that may be, consistently with this Schedule and the regulations: (a) agreed on between the equipment supplier and any relevant health and safety representative; or (b) agreed on by a health and safety committee. (3) If an agreement of the kind referred to in paragraph (2)(a) (whether or not entered into before the commencement of this clause) or of the kind referred to in paragraph (2)(b) provides a process for choosing equipment of a particular kind that is to be provided by the equipment supplier, action must not be taken against a person for failure to use equipment of that kind that is so provided unless the equipment has been chosen in accordance with that process. (4) If an agreement of the kind referred to in paragraph (2)(a) (whether or not entered into before the commencement of this clause) or of the kind referred to in paragraph (2)(b) provides a process for determining the manner of use of equipment of a particular kind, action must not be taken against a person for failure to use, in the manner required by the equipment supplier, equipment of that kind that is so provided unless the manner has been determined in accordance with that process. #### 10 Reliance on information supplied or results of research (1) Without limiting the generality of what constitutes taking reasonably practicable steps as required by clause 3, 4 or 5, for the purpose of the application of that clause to the use of plant or a substance, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires, in relation to the use of the plant or substance, to the extent that: (a) the person ensured, so far as practicable, that its use was in accordance with the information supplied by the manufacturer or the supplier of the plant or substance relating to health and safety in its use; and (b) it was reasonable for the person to rely on that information. (2) Without limiting the generality of what constitutes reasonably practicable steps as required by clause 8, for the purpose of the application of that clause to the erection of a facility or the erection or installation of plant at a facility, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires to the extent that: (a) the person ensured, so far as is reasonably practicable, that the erection of the facility, or the erection or installation of the plant, was in accordance with information supplied by the manufacturer or supplier of the facility or plant relating to its erection or its installation, consistent with the health and safety of persons at the facility; and (b) it was reasonable for the person to rely on that information. (3) Without limiting the generality of what constitutes taking reasonably practicable steps as required by clause 6 or 7, for the purpose of the application of that clause to carrying out research, testing and examining a facility, or any plant or substance, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires, in relation to carrying out research, testing and examining the facility, plant or substance, to the extent that: (a) the research, testing or examination has already been carried out by or on behalf of someone else; and (b) it was reasonable for the person to rely on that research, testing or examination. ### Division 2—Specific duties relating to occupational health and safety #### 11 Regulations relating to occupational health and safety (1) Subject to this Schedule, the regulations may make provision relating to any matter affecting, or likely to affect, the occupational health and safety of persons at a facility. (2) Without limiting the generality of subclause (1), those regulations may make provision for any or all of the following: (a) prohibiting or restricting the performance of all work or specified work at a facility; (b) prohibiting or restricting the use of all plant or specified plant at a facility; (c) prohibiting or restricting the carrying out of all processes or a specified process at a facility; (d) prohibiting or restricting the storage or use of all substances or specified substances at a facility; (e) specifying the form in which information required to be made available under paragraph 6(1)(c) or 7(1)(c) is to be so made available; (f) prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances at a facility; (g) providing for the issue, variation, renewal, transfer, suspension and cancellation of such licences, the conditions to which the licences may be subject and the fees payable for the issue, variation or transfer of the licences; (h) regulating the maintenance and testing of plant used at a facility; (j) regulating the labelling or marking of substances used at a facility; (k) regulating the transport of specified plant or specified substances for use at a facility; (m) prohibiting the performance, at a facility, of specified activities or work except: (i) by persons who satisfy requirements of the regulations as to qualifications, training or experience; or (ii) under the supervision specified in the regulations; (n) requiring specified action to avoid accidents or dangerous occurrences; (p) providing for, or prohibiting, specified action in the event of accidents or dangerous occurrences; (q) providing for the employment at a facility of persons to perform specified duties relating to the maintenance of occupational health and safety at the facility; (r) regulating the provision and use, at a facility, of protective clothing and equipment, safety equipment and rescue equipment; (s) providing for monitoring the health of members of the workforce at a facility and the conditions at the facility; (t) requiring employers to keep records of matters related to the occupational health and safety of employees; (u) providing for the provision of first aid equipment and facilities at facilities. (3) Regulations made for the purposes of this clause may make different provision in respect of different classes of facility. (4) Subclause (3) does not limit subsection 33(3A) of the Acts Interpretation Act 1901. ## Part 3—Workplace arrangements ### Division 1—Health and safety representatives #### 12 Designated work groups (1) A request to the operator of a facility to enter into consultations to establish designated work groups in respect of the members of the workforce at the facility, or to vary designated work groups that have already been established, may be made by: (a) any member of the workforce; or (b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator—that workforce representative. (2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with: (a) if any member of the workforce made a request to establish designated work groups: (i) that member of the workforce; and (ii) if that member requests that the operator enter into consultations with a workforce representative in relation to the member—that workforce representative; and (iii) each employer (if any) of members of the workforce; and (b) if any member of the workforce made a request to vary designated work groups: (i) that member of the workforce; and (ii) the health and safety representative of each designated work group affected by the proposed variation; and (iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation; and (c) if a workforce representative made a request to establish designated work groups: (i) if a member of the workforce requests that the operator enter into consultations with that workforce representative—that workforce representative; and (ii) each employer of members of the workforce; and (d) if a workforce representative made a request to vary designated work groups: (i) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with a workforce representative in relation to the group—that workforce representative; and (ii) the health and safety representative of each designated work group affected by the proposed variation; and (iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation. (2A) If, at any time, the operator of a facility considers that designated work groups should be established, the operator must enter into consultations with: (a) all members of the workforce; and (b) if a member of the workforce requests that the operator enter into consultations with a workforce representative in relation to the member—that workforce representative; and (c) each employer (if any) of members of the workforce. (3) If the operator of a facility believes the designated work groups should be varied, the operator may, at any time, enter into consultations about the variations with: (a) the health and safety representative of each of the designated work groups affected by the proposed variation; and (b) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with a workforce representative in relation to the group—that workforce representative; and (c) each work group employer (if any) in relation to each designated work group affected by the proposed variation. (4) If, in the course of consultations under subclause (2), (2A) or (3), there is a disagreement between any of the parties to the consultation about the manner of establishing or varying a designated work group, any party may, for the purpose of facilitating that consultation, refer the matter of disagreement to the reviewing authority and, where this is done, the parties to the disagreement must complete the consultation in accordance with the resolution of that matter by the reviewing authority. (5) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations. (6) Within 14 days after the completion of consultations about the variation of designated work groups that have already been established, the operator must, if it has been determined that the variation of some or all of those designated work groups is justified, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations. (7) Consultations about the establishment or variation of a designated work group must be directed principally at the determination of the manner of grouping members of the workforce: (a) that best and most conveniently enables their interests relating to occupational health and safety to be represented and safeguarded; and (b) that best takes account of the need for any health and safety representative selected for that designated work group to be accessible to each group member. (8) The parties to the consultations must have regard, in particular, to: (a) the number of members of the workforce at the facility to which the consultation relates; and (b) the nature of each type of work performed by such members; and (c) the number and grouping of such members who perform the same or similar types of work; and (d) the workplaces where each type of work is performed; and (e) the nature of any risks to health and safety at each such workplace; and (f) any overtime or shift working arrangement at the facility. (9) The designated work groups must be established or varied in such a way that, so far as practicable, each of the members of the workforce at a facility is in a designated work group. (10) All the members of the workforce at a facility may be in one designated work group. #### 13 Health and safety representatives (1) One health and safety representative may be selected for each designated work group. (2) A person is not eligible for selection as the health and safety representative for a designated work group unless the person is a member of the workforce included in the group. (3) A person is taken to have been selected as the health and safety representative for a designated work group if: (a) all the members of the workforce in the group unanimously agree to the selection; or (b) the person is elected as the health and safety representative of the group in accordance with clause 13A. #### 13A Election of health and safety representatives (1) If: (a) there is a vacancy in the office of health and safety representative for a designated work group; and (b) within a reasonable time after the vacancy occurs, a person has not been selected under paragraph 13(3)(a); the operator of the facility must invite nominations from all group members for election as the health and safety representative of the group. (2) If the office of health and safety representative is vacant and the operator has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, the Safety Authority may direct the operator to do so. (3) If there is more than one candidate for election at the close of the nomination period, the operator must conduct, or arrange for the conduct of, an election at the operator’s expense. (4) An election conducted or arranged to be conducted under subclause (3) must be conducted in accordance with regulations made for the purposes of this subclause if this is requested by the lesser of: (a) 100 members of the workforce normally in the designated work group; or (b) a majority of the members of the workforce normally in the designated work group. (5) If there is only one candidate for election at the close of the nomination period, that person is taken to have been elected. (6) A person cannot be a candidate in the election if he or she is disqualified under clause 21. (7) All the members of the workforce in the designated work group are entitled to vote in the election. (8) An operator conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by the Safety Authority. #### 13B List of health and safety representatives The operator of a facility must: (a) prepare and keep up to date a list of all the health and safety representatives of designated work groups comprising members of the workforce performing work at the facility; and (b) ensure that the list is available for inspection, at all reasonable times, by: (i) the members of the workforce at the facility; and (ii) OHS inspectors. #### 13C Members of designated work group must be notified of selection etc. of health and safety representative The operator of a facility must: (a) notify members of a designated work group in relation to the facility of a vacancy in the office of health and safety representative for the designated work group within a reasonable time after the vacancy arises; and (b) notify those members of the name of any person selected (whether under paragraph 13(3)(a) or (b)) as health and safety representative for the designated work group within a reasonable time after the selection is made. #### 14 Term of office Subject to this Part, a health and safety representative for a designated work group holds office: (a) if, in consultations that took place under clause 12, the parties to the consultations agreed to the period for which the health and safety representative for the group was to hold office—for such a period; or (b) if paragraph (a) does not apply—for 2 years; beginning at the first moment of the day on which he or she was selected, but is eligible to be selected for further terms of office. #### 15 Training of health and safety representatives (1) A health and safety representative for a designated work group must undertake a course of training relating to occupational health and safety that is accredited by the Safety Authority for the purposes of this clause. (2) The operator of the facility concerned and, if a person other than the operator is the employer of the representative, that person, must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training. #### 16 Powers of health and safety representatives (1) A health and safety representative for a designated work group may, for the purpose of promoting or ensuring the health and safety at a workplace of the group members: (a) do all or any of the following: (i) inspect the whole or any part of the workplace if there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or if there is an immediate threat of such an accident or dangerous occurrence; (ii) inspect the whole or any part of the workplace if the health and safety representative has given reasonable notice of the inspection to the operator’s representative at the facility and to any other person having immediate control of the workplace; (iii) make a request to an OHS inspector or to the Safety Authority that an inspection be conducted at the workplace; (iv) accompany an OHS inspector during any inspection at the workplace by the OHS inspector (whether or not the inspection is being conducted as a result of a request made by the health and safety representative); (v) if there is no health and safety committee in respect of the members of the workforce at the facility—represent group members in consultations with the operator and any work group employer about the development, implementation and review of measures to ensure the health and safety of those members at the workplace; (vi) if a health and safety committee has been established in respect of the members of the workforce at the facility—examine any of the records of that committee; and (b) investigate complaints made by any group member to the health and safety representative about the health and safety of any of the members of the workforce (whether in the group or not); and (c) with the consent of a group member, be present at any interview about health and safety at work between that member and: (i) an OHS inspector; or (ii) the operator or any work group employer or a person representing the operator or that employer; and (d) obtain access to any information under the control of the operator or any work group employer: (i) relating to risks to the health and safety of any group member; and (ii) subject to subclause (6), relating to the health and safety of any group member; and (e) issue provisional improvement notices in accordance with clause 17. (2) A health and safety representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant. (3) A health and safety representative for a designated work group must not: (a) be assisted by a consultant at a workplace at which work is performed; or (b) provide to a consultant information that has been provided to the health and safety representative by a group member under paragraph (1)(d); unless the operator or the Safety Authority has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be. (4) Neither the operator nor any workplace employer becomes, because of the agreement under subclause (3) to the provision of assistance by a consultant, liable for any remuneration or other expenses incurred in connection with the consultant’s activities. (5) If a health and safety representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, about health and safety at work, between a group member and: (a) an OHS inspector; or (b) the operator or any work group employer or a person representing the operator or that employer; if, and only if, the group member consents to the presence of the consultant. (6) The health and safety representative is not entitled or, where the health and safety representative is assisted by a consultant, the health and safety representative and the consultant are not entitled, under subparagraph (1)(d)(ii), to have access: (a) to information in respect of which a group member is entitled to claim, and does claim, legal professional privilege; or (b) to information of a confidential medical nature relating to a person who is or was a group member unless: (i) the person has delivered to the operator or any work group employer a written authority permitting the health and safety representative, or the health and safety representative and the consultant, as the case requires, to have access to the information; or (ii) the information is in a form that does not identify the person or enable the identity of the person to be discovered. (7) This Schedule does not: (a) impose an obligation on a person to exercise any power conferred on the person because the person is a health and safety representative; or (b) render a person liable in civil proceedings because of: (i) a failure to exercise such a power; or (ii) the way such a power was exercised. #### 17 Provisional improvement notices (1) If a health and safety representative for a designated work group believes, on reasonable grounds, that a person: (a) is contravening a provision of this Schedule or the regulations; or (b) has contravened a provision of this Schedule or the regulations and is likely to contravene that provision again; being a contravention that affects or that may affect one or more group members, the representative must consult with the person supervising the relevant activity in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention. (2) If, in the health and safety representative’s opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional improvement notice to any or all of the persons (each of whom is in this clause called a responsible person) responsible for the contravention. (3) If a responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator’s representative at the facility. (3A) If it is not practicable to issue the notice to a responsible person (other than the operator or the supervisor) by giving it to that responsible person: (a) the notice may be issued to that responsible person by giving it to the person who for the time being is, or may reasonably be presumed to be, on behalf of the responsible person, in charge of the activity to which the notice relates; and (b) if the notice is so issued, a copy of the notice must be given to the responsible person as soon as practicable afterwards. (4) The notice must: (a) specify the contravention that, in the health and safety representative’s opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and (b) specify a period of not less than 7 days beginning on the day after the notice is issued, being a period that is, in the representative’s opinion, reasonable, within which the responsible person is to take action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be. (5) The notice may specify action that the responsible person is to take during the period specified in the notice. (6) If, in the health and safety representative’s opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice. (7) On issuing the notice, the health and safety representative must give a copy of the notice to: (a) if the operator is not a responsible person—the operator; and (b) each work group employer other than a work group employer who is a responsible person; and (c) if the supervisor is not a responsible person—the supervisor; and (d) if the notice relates to any plant, substance or thing that is owned by a person other than a responsible person or a person to whom a copy of the notice is given under paragraph (a), (b) or (c)—that owner. #### 18 Effect of provisional improvement notice (1) Within 7 days after a notice is issued under clause 17, the responsible person, or any other person, to whom a copy of the notice has been given under subclause 17(7) may make a request to the Safety Authority or to an OHS inspector that an inspection of the matter be conducted. (2) Upon the request being made, the operation of the notice is suspended pending the determination of the matter by an OHS inspector. (3) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the disagreement, and the OHS inspector conducting the inspection must: (a) confirm, vary or cancel the notice and notify the responsible person and any person to whom a copy of the notice has been given under subclause 17(2) accordingly; and (b) make such decisions, and exercise such powers, under Part 4, as the OHS inspector considers necessary in relation to the work. (4) If the OHS inspector varies a notice, the notice as so varied has effect: (a) so far as the notice concerns obligations imposed on the responsible person that are unaffected by the variation—as if the notice as so varied resumed effect on the day of the variation; and (b) so far as the notice concerns new obligations imposed by virtue of the variation—as if the notice as so varied were a new notice issued on the day of the variation. (5) If the notice is issued to a responsible person, the responsible person must: (a) notify each group member who is affected by the notice of the fact of the issue of the notice; and (b) until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed. (6) The notice ceases to have effect if: (a) it is cancelled by an OHS inspector or by the health and safety representative; or (b) the responsible person: (i) takes such action, if any, as is specified in the notice; or (ii) if no action is so specified—takes the action necessary to prevent the further contravention, or likely contravention, concerned. (7) The responsible person: (a) must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and (b) must take reasonable steps to inform the health and safety representative who issued the notice of the action taken to comply with the notice. (8) For the purposes of clause 37, if the OHS inspector confirms or varies the notice, the OHS inspector is taken to have decided, under clause 36, to issue an improvement notice in those terms. #### 19 Duties of the operator and other employers in relation to health and safety representatives (1) The operator of a facility, in respect of which a designated work group having a health and safety representative has been established, must: (a) on being requested to do so by the representative, consult with the representative on the implementation of changes at any workplace at which some or all of the group members perform work, being changes that may affect their health and safety; and (b) in respect of a workplace at which some or all of the group members perform work: (i) permit the representative to make such inspection of the workplace as the representative is entitled to make in accordance with subparagraph 16(1)(a)(i) and to accompany an OHS inspector during an inspection at the workplace by the OHS inspector; and (ii) if there is no health and safety committee in respect of the members of the workforce—on being requested to do so by the representative, consult with the representative about the development, implementation and review of measures to ensure the health and safety of group members; and (c) permit the representative to be present at any interview at which the representative is entitled to be present under paragraph 16(1)(c); and (d) subject to subclauses (2) and (3), provide to the representative access to any information to which the representative is entitled to obtain access under subparagraph 16(1)(d)(i) or (ii) and to which access has been requested; and (e) permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to exercise the powers of a health and safety representative; and (f) provide the representative with access to such facilities as are: (i) prescribed for the purposes of this paragraph; or (ii) necessary for the purposes of exercising the powers of a health and safety representative. (2) The operator must not permit a health and safety representative in respect of a designated work group to have access to information of a confidential medical nature under the control of the operator, being information relating to a person who is or was a group member, unless: (a) the person has delivered to the employer a written authority permitting the representative to have access to the information; or (b) the information is in a form that does not identify the person or enable the identity of the person to be discovered. (3) The operator is not required to give a health and safety representative access to any information in respect of which the operator is entitled to claim, and does claim legal professional privilege. (4) The duties imposed by this clause on the operator in respect of the health and safety representative for a designated work group apply equally, to the extent that the matters to which the duties relate are within the control of a work group employer or of a supervisor of particular work, to that employer and to that supervisor. #### 20 Resignation etc. of health and safety representatives (1) A person must cease to be the health and safety representative for the designated work group if: (a) the person resigns as the health and safety representative; or (b) the person ceases to be a group member of that designated work group; or (c) the person’s term of office expires without the person having been selected, under clause 13, to be the health and safety representative for the designated work group for a further term; or (d) the person is disqualified under clause 21. (2) A person may resign as the health and safety representative for a designated work group by notice in writing delivered to the operator and to each work group employer. (3) If a person resigns as the health and safety representative for a designated work group, the person must notify the resignation to: (a) the group members; and (b) the operator and each work group employer. (4) If a person has ceased to be the health and safety representative for a designated work group because of paragraph (1)(b), the person must notify in writing: (a) the group members; and (b) the operator and each work group employer; that the person has ceased to be the health and safety representative for that designated work group. #### 21 Disqualification of health and safety representatives (1) An application for the disqualification of a health and safety representative for a designated work group may be made to the Safety Authority by the operator, by a work group employer or, at the request of a group member of the designated work group, by a workforce representative in relation to the designated work group, on one or both of the following grounds: (a) that action taken by the representative in the exercise or purported exercise of a power under subclause 16(1) or any other provision of this Schedule was taken: (i) with the intention of causing harm to the operator or work group employer or to an undertaking of the operator or work group employer; or (ii) unreasonably, capriciously or not for the purpose for which the power was conferred on the representative; (b) that the representative has intentionally used, or disclosed to another person, for a purpose that is not connected with the exercise of a power of a health and safety representative, information acquired from the operator or work group employer. (2) If, on an application by the operator or work group employer under subclause (1), the Safety Authority is satisfied that the health and safety representative has acted in a manner referred to in paragraph (1)(a) or (b), the Safety Authority may, after having regard to: (a) the harm (if any) that was caused to the operator or work group employer or to an undertaking of the operator or work group employer as a result of the action of the representative; and (b) the past record of the representative in exercising the powers of a health and safety representative; and (c) the effect (if any) on the public interest of the action of the representative; and (d) such other matters as the Authority thinks relevant; disqualify the representative, for a specified period not exceeding 5 years, from being a health and safety representative for any designated work group. #### 22 Deputy health and safety representatives (1) One deputy health and safety representative may be selected for each designated work group for which a health and safety representative has been selected. (2) A deputy health and safety representative is to be selected in the same way as a health and safety representative under clause 13. (3) If the health and safety representative for a designated work group ceases to be the health and safety representative or is unable (because of absence or for any other reason) to exercise the powers of a health and safety representative: (a) the powers may be exercised by the deputy health and safety representative (if any) for the group; and (b) this Schedule (other than this clause) applies in relation to the deputy health and safety representative accordingly. ### Division 2—Health and safety committees #### 23 Health and safety committees (1) A health and safety committee must be established in respect of the members of the workforce at a facility if: (a) the number of those members normally present at the facility is not less than 50 (whether or not those members are all at work at the facility at the same time); and (b) the members of the workforce are included in one or more designated work groups; and (c) the operator is requested to establish the committee by the health and safety representative for the designated work group or for one of the designated work groups. (2) The health and safety committee consists of: (a) the number of members specified in an agreement reached between the operator and the members of the workforce; or (b) if there is no such agreement—an equal number of members, chosen by the members of the workforce, to represent the interests of members of the workforce and members, chosen by the operator, to represent the interests of the operator and the employer (other than the operator) of members of the workforce. (3) The agreement referred to in paragraph (2)(a) may: (a) specify the persons who are to be members to represent the interests of the operator and employers (other than the operator) of members of the workforce; and (b) provide for the way in which persons who are to be members to represent the interests of members of the workforce are to be chosen. (4) If regulations made for the purposes of this clause specify procedures for the selection of persons as members of health and safety committees, to represent the interests of members of the workforce, an agreement referred to in paragraph (2)(a) must not provide for such members to be chosen in a way inconsistent with the regulations. (5) A health and safety committee must hold meetings at least once every 3 months. (6) The procedure at meetings of a health and safety committee must, except to the extent provided for by the regulations, be the procedure agreed upon by the committee. (7) A health and safety committee must cause minutes of its meetings to be kept, and must retain those minutes for a period of not less than 3 years. (8) This clause does not prevent an operator from establishing, in consultation with members of the workforce or any other persons, committees concerned with occupational health and safety in relation to undertakings carried on by the operator. #### 24 Functions of health and safety committees (1) A health and safety committee has the following functions: (a) to assist the operator of the facility concerned: (i) to develop and implement measures designed to protect; and (ii) to review and update measures used to protect; the health and safety at work of members of the workforce; (b) to facilitate cooperation between the operator of the facility, employers (other than the operator) of members of the workforce, and members of the workforce, in relation to occupational health and safety matters; (c) to assist the operator to disseminate among members of the workforce, in appropriate languages, information relating to health and safety at work; (d) such functions as are prescribed; (e) such other functions as are agreed upon between the operator and the health and safety committee. (2) A health and safety committee has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions. (3) This Schedule does not: (a) impose an obligation on a person to do any act, because the person is a member of a health and safety committee, in connection with the performance of a function conferred on the committee; or (b) render such a person liable in civil proceedings because of: (i) a failure to do such an act; or (ii) the manner in which such an act was done. #### 25 Duties of the operator and other employers in relation to health and safety committees (1) If there is a health and safety committee, the operator and any employer (other than the operator) of a member of the workforce must: (a) subject to subclauses (2) and (3), make available to the committee any information possessed by the operator or that employer relating to risks to health and safety to members of the workforce; and (b) permit any member of the committee who is a member of the workforce to take such time off work, without loss of remuneration or other entitlements, as is necessary for the member adequately to participate in the performance by the committee of its functions. (2) The operator or any employer (other than the operator) of a member of the workforce must not make available to a health and safety committee information of a confidential nature relating to a person who is or was a member of the workforce, unless: (a) the person has authorised the information to be made available to the committee; or (b) the information is in a form that does not identify the person or enable the identity of the person to be discovered. (3) The operator or any employer (other than the operator) of a member of the workforce is not required to make available to a health and safety committee any information in respect of which the operator or employer is entitled to claim, and does claim, legal professional privilege. ### Division 3—Emergency procedures #### 26 Action by health and safety representatives (1) If a health and safety representative for a designated work group has reasonable cause to believe that there is an imminent and serious danger to the health or safety of any person at or near the facility unless a group member or group members cease to perform particular work, the representative must: (a) inform a person (a supervisor) supervising the group member or group members in the performance of the work of the danger; or (b) if no supervisor can be contacted immediately: (i) direct the group member or group members to cease, in a safe manner, to perform the work; and (ii) as soon as practicable, inform a supervisor that the direction has been given. (2) If a supervisor is informed under paragraph (1)(a) of a danger to the health or safety of any person at or near the facility, the supervisor must take such action as he or she thinks appropriate to remove that danger, and any such action may include directing a group member or group members to cease, in a safe manner, to perform the work. (3) If: (a) a health and safety representative has informed a supervisor under paragraph (1)(a) of a danger; and (b) the representative has reasonable cause to believe that, despite any action taken by the supervisor in accordance with subclause (2), there continues to be an imminent and serious danger to the health or safety of any person at or near the facility unless the group member or group members cease to perform particular work; the representative must: (c) direct the group member or group members to cease, in a safe manner, to perform the work; and (d) as soon as practicable, inform the supervisor that the direction has been given. (4) If: (a) a health and safety representative gives a direction under paragraph (1)(b), but is unable to agree with a supervisor whom the representative has informed under that paragraph that there is a need for a direction under that paragraph; or (b) a health and safety representative gives a direction under paragraph (3)(c); the representative or the supervisor may make a request to the Safety Authority or to an OHS inspector that an inspection be conducted of the work that is the subject of the direction. (5) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the direction, and the OHS inspector conducting the inspection must make such decisions, and exercise such powers, under Part 4 as the OHS inspector considers necessary in relation to the work. (6) This clause does not limit the power of a health and safety representative under subparagraph 16(1)(a)(iii) to make a request to an OHS inspector or to the Safety Authority that an inspection be conducted at the workplace. #### 27 Directions to perform other work If a group member who is an employee has ceased to perform work, in accordance with the direction of a health and safety representative under paragraph 26(1)(b) or (3)(c), not being a cessation of work that continues after: (a) the health and safety representative has agreed with a person supervising work at the workplace where the work was being performed that the cessation of work was not, or is no longer, necessary; or (b) an OHS inspector has, under subclause 26(5), made a decision to the effect that the employee should perform the work; the employer may direct the employee to perform suitable alternative work, and the employee is to be taken, for all purposes, to be required to perform that other work under the terms and conditions of the employee’s employment. ### Division 4—Exemptions #### 27A Exemptions (1) The Safety Authority may, in accordance with the regulations, make a written order exempting a specified person from any or all of the provisions of this Part (other than this clause). > Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901. (2) The Safety Authority must not make an order under subclause (1) unless it is satisfied on reasonable grounds that it is impracticable for the person to comply with the provision or provisions. (3) An order under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. ## Part 4—Inspections ### Division 1—Inspections #### 29 OHS inspectors \[see Note 2\] (1) A person who is appointed under section 150YL as an OHS inspector has the powers, functions and duties of an OHS inspector conferred or imposed by this Schedule and by regulations set out in or prescribed for the purposes of subsection 140H(2). (2) The Safety Authority may give written directions specifying the manner in which, and the conditions subject to which, powers conferred on OHS inspectors: (a) by this Schedule; or (b) by regulations set out in or prescribed for the purposes of subsection 140H(2); are to be exercised. If it does so, the powers of OHS inspectors must be exercised in accordance with those directions. (3) The Safety Authority may, by notice in writing, impose restrictions, not inconsistent with any direction in force under subclause (2), on the powers that are conferred on a particular OHS inspector by this Schedule or by regulations set out in or prescribed for the purposes of subsection 140H(2). If it does so, the powers of the OHS inspector are taken to have been restricted accordingly. #### 30 Inspections (1) An OHS inspector may, at any time, conduct an inspection: (a) to ascertain whether the requirements of, or any requirements properly made under, this Schedule or regulations set out in or prescribed for the purposes of subsection 140H(2), are being complied with; or (b) concerning a contravention or a possible contravention of this Schedule or those regulations; or (c) concerning an accident or dangerous occurrence that has happened at a facility. (2) The Safety Authority may direct an OHS inspector to conduct an inspection: (a) to ascertain whether the requirements of, or any requirements properly made under, this Schedule or regulations set out in or prescribed for the purposes of subsection 140H(2), are being complied with; or (b) concerning a contravention or a possible contravention of this Schedule or those regulations; or (c) concerning an accident or dangerous occurrence that has happened at a facility; and the OHS inspector must, unless the Safety Authority revokes the direction, conduct an inspection accordingly. #### 31 Powers of entry and search—facilities (1) An OHS inspector may, for the purposes of an inspection, at any reasonable time during the day or night: (a) enter the facility to which the inspection relates and do all or any of the following: (i) search the facility; (ii) inspect, examine, take measurements of, or conduct tests concerning, any workplace at the facility or any plant, substance or thing at the facility; (iii) take photographs of, or make sketches of, any workplace at the facility or any plant, substance or thing at the facility; (iv) inspect, take extracts from, or make copies of, any documents at the facility that the OHS inspector has reasonable grounds to believe relate, or are likely to relate, to the subject matter of the inspection; and (b) inspect the seabed and subsoil in the vicinity of the facility to which the inspection relates. (2) Immediately on entering a facility for the purposes of an inspection, an OHS inspector must take reasonable steps to notify the purpose of entering the facility to: (a) the operator’s representative at the facility; and (b) if there is a health and safety representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection—that representative; and must, on being requested to do so by the person referred to in paragraph (a) or (b), produce for inspection by that person: (c) the OHS inspector’s identity card; and (d) a copy of the Safety Authority’s written direction (if any) to conduct the inspection; and (e) a copy of the restrictions (if any) imposed on the powers of the OHS inspector under subclause 29(3). (3) If there is a health and safety representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection, the OHS inspector must afford the health and safety representative a reasonable opportunity to consult on the matter the subject of the inspection. (4) A person is guilty of an offence if the person obstructs or hinders an OHS inspector in the exercise of an OHS inspector’s powers under this clause. Penalty: 50 penalty units. (5) Subclause (4) does not apply if the person has a reasonable excuse. > Note 1: The defendant bears an evidential burden in relation to the matter in subclause (5)—see section 13.3(3) of the Criminal Code. > Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility). > Note 3: The same conduct may be an offence against subclause (4) of this clause and section 149.1 of the Criminal Code. #### 31A Powers of entry and search—regulated business premises (other than facilities) (1) An OHS inspector may, for the purposes of an inspection: (a) at any reasonable time, enter any regulated business premises (other than a facility) if the OHS inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a facility that is, or to facility operations that are, the subject of the inspection; and (b) search for, inspect, take extracts from, or make copies of, any such documents at those premises. (2) Immediately on entering premises referred to in subclause (1), an OHS inspector must take reasonable steps to notify the purpose of the entry to the occupier of those premises, and must, on being requested to do so by the occupier, produce for inspection by the occupier: (a) the OHS inspector’s identity card; and (b) a copy of the Safety Authority’s written direction (if any) to conduct the inspection; and (c) a copy of the restrictions (if any) imposed on the powers of the OHS inspector under subclause 29(3). (3) A person is guilty of an offence if the person obstructs or hinders an OHS inspector in the exercise of an OHS inspector’s powers under this clause. Penalty: 50 penalty units. (4) Subclause (3) does not apply if the person has a reasonable excuse. > Note 1: The defendant bears an evidential burden in relation to the matter in subclause (4)—see section 13.3(3) of the Criminal Code. > Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility). > Note 3: The same conduct may be an offence against subclause (3) of this clause and section 149.1 of the Criminal Code. #### 31B Powers of entry and search—premises (other than regulated business premises) (1) An OHS inspector may, for the purposes of an inspection: (a) enter any premises (other than regulated business premises) if the OHS inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a facility that is, or to facility operations that are, the subject of the inspection; and (b) search for, inspect, take extracts from, or make copies of, any such documents at those premises. (2) An OHS inspector may exercise the powers referred to in subclause (1) to enter premises only: (a) if the premises are not a residence: (i) in accordance with a warrant under clause 31C; or (ii) with the consent of the occupier of the premises; or (b) if the premises are a residence—with the consent of the occupier of the premises. (3) Immediately on entering premises referred to in subclause (1), an OHS inspector must: (a) take reasonable steps to notify the purpose of the entry to the occupier of those premises; and (b) take reasonable steps to produce, for inspection by the occupier, the OHS inspector’s identity card; and (c) on being requested to do so by the occupier, produce, for inspection by the occupier: (i) a copy of the Safety Authority’s written direction (if any) to conduct the inspection; and (ii) a copy of the restrictions (if any) imposed on the powers of the OHS inspector under subclause 29(3). (4) If: (a) an OHS inspector enters premises in accordance with a warrant under clause 31C; and (b) the occupier of the premises is present at the premises; the OHS inspector must make a copy of the warrant available to the occupier. (5) Before obtaining the consent of a person as mentioned in paragraph (2)(a) or (b), an OHS inspector must inform the person that: (a) the person may refuse consent; and (b) the consent may be withdrawn. (6) The consent of a person is not effective for the purposes of subclause (2) unless the consent is voluntary. (7) A person is guilty of an offence if the person obstructs or hinders an OHS inspector in the exercise of an OHS inspector’s powers under this clause. Penalty: 50 penalty units. (8) Subclause (7) does not apply if the person has a reasonable excuse. > Note 1: The defendant bears an evidential burden in relation to the matter in subclause (8)—see section 13.3(3) of the Criminal Code. > Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility). > Note 3: The same conduct may be an offence against subclause (7) of this clause and section 149.1 of the Criminal Code. #### 31C Warrant to enter premises (other than regulated business premises) (1) An OHS inspector may apply to a Magistrate for a warrant authorising the OHS inspector, with such assistance as the OHS inspector thinks necessary, to exercise the powers referred to in subclause 31B(1) in relation to particular premises (other than a residence). (2) The application must be supported by an information on oath or affirmation that sets out the grounds on which the OHS inspector is applying for the warrant. (3) If the Magistrate is satisfied that there are reasonable grounds for issuing the warrant, the Magistrate may issue the warrant. (4) A warrant issued under subclause (3) must state: (a) the name of the OHS inspector; and (b) whether the inspection may be carried out at any time or only during specified hours of the day; and (c) the day on which the warrant ceases to have effect; and (d) the purposes for which the warrant is issued. (5) The day specified under paragraph (4)(c) is not to be more than 7 days after the day on which the warrant is issued. (6) The purposes specified under paragraph (4)(d) must include the identification of the premises in relation to which the warrant is issued. #### 32 Power to require assistance and information Requirement to give reasonable assistance to an OHS inspector (1) An OHS inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of an inspection, require: (a) the operator of a facility; or (b) the person in charge of operations at a workplace in relation to a facility; or (c) a member of the workforce at a facility; or (d) any person representing a person referred to in paragraph (a) or (b); to provide the OHS inspector with reasonable assistance and facilities: (e) that is or are reasonably connected with the conduct of the inspection at or near the facility; or (f) for the effective exercise of the OHS inspector’s powers under this Schedule in connection with the conduct of the inspection at or near the facility. (1A) The reasonable assistance referred to in subclause (1) includes, so far as the operator of the facility is concerned: (a) appropriate transport to or from the facility for the OHS inspector and for any equipment required by the OHS inspector, or any article of which the OHS inspector has taken possession; and (b) reasonable accommodation and means of subsistence while the OHS inspector is at the facility. Requirement to answer questions (1B) If: (a) an OHS inspector believes on reasonable grounds that a person is capable of answering a question that is reasonably connected with the conduct of an inspection; and (b) the person is covered by any of the following subparagraphs: (i) the operator of a facility; (ii) the person in charge of operations at a workplace in relation to a facility; (iii) a member of the workforce at a facility; (iv) any person representing a person referred to in subparagraph (i) or (ii); the OHS inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to answer the question put by the OHS inspector. (1C) If, at the time when a requirement under subclause (1B) is imposed on a person, the person is not physically present on regulated business premises, the person is not obliged to comply with the requirement unless the requirement: (a) is in writing; and (b) specifies the day on or before which the question is to be answered; and (c) is accompanied by a statement to the effect that a failure to comply with the requirement is an offence. The day specified under paragraph (b) must be at least 14 days after the day on which the requirement is imposed. Requirement to produce documents or articles (1D) If: (a) an OHS inspector believes on reasonable grounds that a person is capable of producing a document or article that is reasonably connected with the conduct of an inspection; and (b) the person is covered by any of the following subparagraphs: (i) the operator of a facility; (ii) the person in charge of operations at a workplace in relation to a facility; (iii) a member of the workforce at a facility; (iv) any person representing a person referred to in subparagraph (i) or (ii); the OHS inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to produce the document or article. (1E) If, at the time when a requirement under subclause (1D) is imposed on a person, the person is not physically present on regulated business premises, the person is not obliged to comply with the requirement unless the requirement: (a) is in writing; and (b) specifies the day on or before which the document or article is to be produced; and (c) is accompanied by a statement to the effect that a failure to comply with the requirement is an offence. The day specified under paragraph (b) must be at least 14 days after the day on which the requirement is imposed. Enforcement (2) A person must not fail to comply with a requirement under this clause. Penalty: Imprisonment for 6 months. (2A) Subclause (2) does not apply if the person has a reasonable excuse. > Note 1: A defendant bears an evidential burden in relation to the matter in subclause (2A), see subsection 13.3(3) of the Criminal Code. > Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility). (3) A person must not, in purported compliance with a requirement made under this clause, give information that is false or misleading in a material particular. Penalty: Imprisonment for 6 months. > Note: The same conduct may be an offence against both subclause (3) of this clause and section 137.1 of the Criminal Code. (4) A person is not excused from answering a question or producing a document or article when required to do so under subclause (1B) or (1D) on the ground that the answer to the question, or the production of the document or article, may tend to incriminate him or her or make him or her liable to a penalty. (5) However, any answer given or document or article produced pursuant to the requirement, and any information or thing (including any document or article) obtained as a direct or indirect consequence of the answering of the question or the production of the document or article, as the case may be, is not admissible in evidence against the person in any civil proceedings or in any criminal proceedings other than proceedings for an offence against this clause. #### 33 Power to take possession of plant, take samples of substances etc. (1) In conducting an inspection, an OHS inspector may, to the extent that it is reasonably necessary for the purposes of inspecting, examining, taking measurements of or conducting tests concerning, any plant, substance or thing at a facility in connection with the inspection: (a) take possession of the plant, substance or thing and remove it from the facility; or (b) take a sample of the substance or thing and remove that sample from the facility. (2) On taking possession of plant, a substance or a thing, or taking a sample of a substance or thing, the OHS inspector must, by notice in writing, inform: (a) the operator of the facility; and (b) if the plant, substance or thing is used for the performance of work by an employer of a member or members of the workforce at the facility other than the operator of the facility—that employer; and (c) if the plant, substance or thing is owned by a person other than a person mentioned in paragraph (a) or (b)—that person; and (d) if there is a health and safety representative for a designated work group that includes a member of the workforce who is affected by the matter to which the inspection relates—that representative; of the taking of possession or the taking of the sample, as the case may be, and the reasons for it. (3) If the OHS inspector gives the notice to the operator of the facility to which the inspection relates, the operator’s representative at the facility must cause the notice to be displayed in a prominent place at the workplace from which the plant, substance or thing was removed. (4) If the OHS inspector takes possession of plant, a substance or a thing at a workplace for the purpose of inspecting, examining, taking measurements of or conducting tests concerning, the plant, substance or thing, the OHS inspector must: (a) ensure that the inspection, examination, measuring or testing is conducted as soon as practicable; and (b) return it to the workplace as soon as practicable afterwards. (5) As soon as practicable after completing any such inspection, examination, measurement or testing, the OHS inspector must give a written statement setting out the results to each person whom the OHS inspector is required to notify under subclause (2). #### 34 Power to direct that workplace etc. not be disturbed (1) In conducting an inspection, an OHS inspector may, if he or she has reasonable grounds to believe that it is reasonably necessary to give a direction in order to: (a) remove an immediate threat to the health or safety of any person; or (b) allow the inspection, examination or taking of measurements of, or conducting of tests concerning, a facility or any plant, substance or thing at the facility; direct, by written notice given to the operator’s representative at the facility, that the operator must ensure that: (c) a particular workplace; or (d) particular plant, or a particular substance or thing; not be disturbed for a period specified in the direction. (1A) The period specified in the direction must be a period that the OHS inspector has reasonable grounds to believe is necessary in order to remove the threat or to allow the inspection, examination, measuring or testing to take place. (2) The direction may be renewed by another direction in the same terms. (3) If an OHS inspector gives a notice to the operator’s representative under subclause (1), the operator’s representative must cause the notice to be displayed in a prominent place at the workplace: (a) that is to be left undisturbed; or (b) where the plant, substance or thing that is to be left undisturbed is located. (4) As soon as practicable after giving the direction, the OHS inspector must take reasonable steps to notify: (a) if the workplace, plant, substance or thing to which the direction relates is owned by a person other than the operator of the facility—that person; and (b) if there is a health and safety representative for a designated work group that includes a group member performing work: (i) at a workplace; or (ii) involving the plant, substance or thing; to which the direction relates—that representative: of the direction and the reasons for giving it. (5) The operator of a facility to which a direction concerning a workplace, plant, substance or a thing relates must ensure that the direction is complied with. Penalty: 250 penalty units. (6) The direction must include the reasons for the direction. #### 35 Power to issue prohibition notices (1) If, having conducted an inspection, an OHS inspector is satisfied on reasonable grounds that it is reasonably necessary to issue a prohibition notice to the operator of a facility in order to remove an immediate threat to the health or safety of any person, the OHS inspector may issue such a notice, in writing, to the operator. (2) The notice must be issued to the operator by giving it to the operator’s representative at the facility. (3) The notice must: (a) specify the activity in respect of which, in the OHS inspector’s opinion, the threat to health or safety has arisen, and set out the reasons for that opinion; and (b) either: (i) direct the operator to ensure that the activity is not engaged in; or (ii) direct the operator to ensure that the activity is not engaged in in a specified manner, being a manner that may relate to any one or more of the following: (A) any workplace, or part of a workplace, at which the activity is not to be engaged in; (B) any plant or substance that is not to be used in connection with the activity; (C) any procedure that is not to be followed in connection with the activity. (4) The operator must ensure that the notice is complied with. Penalty: 250 penalty units. (5) If an OHS inspector is satisfied that action taken by the operator to remove the threat to health and safety is not adequate, the OHS inspector must inform the operator accordingly. (6) The notice ceases to have effect when an OHS inspector notifies the operator that the OHS inspector is satisfied that the operator has taken adequate action to remove the threat to health or safety. (7) In making a decision under subclause (5), an OHS inspector may exercise such of the powers of an OHS inspector conducting an inspection as the OHS inspector considers necessary for the purposes of making the decision. (8) The notice may specify action that may be taken to satisfy an OHS inspector that adequate action has been taken to remove the threat to health and safety. (9) The operator’s representative at the facility must: (a) give a copy of the notice to each health and safety representative (if any) for any designated work group having group members performing work that is affected by the notice; and (b) cause a copy of the notice to be displayed at a prominent place at or near each workplace at which that work is performed. (10) If the notice relates to any workplace, plant, substance or thing that is owned by a person other than the operator, the OHS inspector must, upon issuing the notice, give a copy of the notice to that person. #### 36 Power to issue improvement notices (1) If, in conducting an inspection, an OHS inspector believes on reasonable grounds that a person: (a) is contravening a provision of this Schedule or the regulations; or (b) has contravened a provision of this Schedule or the regulations and is likely to contravene that provision again; the OHS inspector may issue an improvement notice, in writing, to the person (in this clause called the responsible person). (2) If the responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator’s representative at the facility. (2A) If the responsible person is an employer (other than the operator) of members of the workforce, but it is not practicable to give the notice to that employer, the improvement notice may be issued to the employer by giving it to the operator’s representative at the facility and, if the notice is so issued, the operator must ensure that a copy of the notice is given to the employer as soon as practicable afterwards. (3) The notice must: (a) specify the contravention that the OHS inspector believes is occurring or is likely to occur, and set out the reasons for that belief; and (b) specify a period, being a period that is, in the OHS inspector’s opinion, reasonable, within which the responsible person is to take the action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be. (4) The notice may specify action that the responsible person is to take during the period specified in the notice. (5) If the OHS inspector believes on reasonable grounds that it is appropriate to do so, the OHS inspector may, in writing and before the end of the period, extend the period specified in the notice. (6) The responsible person must ensure that the notice is complied with to the extent that it relates to any matter over which the person has control. Penalty: 100 penalty units. (7) If a notice is issued to an employer (other than the operator) of members of the workforce in circumstances other than the circumstance referred to in subclause 36(2A), the employer must immediately ensure that a copy of the notice is given to the operator’s representative at the facility. (7A) If a notice is issued to the operator or to an employer (other than the operator) of members of the workforce, the operator’s representative at the facility must: (a) give a copy of the notice to each health and safety representative for a designated work group having group members performing work that is affected by the notice; and (b) cause a copy of the notice to be displayed in a prominent place at or near each workplace at which the work is being performed. (8) Upon issuing a notice, the OHS inspector must give a copy of the notice to: (a) if the notice is given to a member of the workforce who is an employee in connection with work performed by the employee—the employer of that employee; and (b) if the notice relates to any workplace, plant, substance or thing that is owned by a person other than a responsible person or a person who is an employer referred to in paragraph (a)—that owner; and (c) if the notice is issued to a person who owns any workplace, plant, substance or thing, because of which a contravention of this Schedule or the regulations has occurred or is likely to occur—the operator of the facility and, if the employer of employees who work in that workplace or who use that plant, substance or thing is a person other than the operator, that employer. #### 37 Appeals (1) If an OHS inspector, in conducting an inspection or having conducted an inspection: (a) decides, under clause 17, to confirm or vary a provisional improvement notice; or (b) decides, under clause 33, to take possession of plant, a substance or a thing at a workplace; or (c) decides, under clause 34, to direct that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed; or (d) decides, under clause 35, to issue a prohibition notice; or (e) decides, under clause 35, that the operator of a facility to whom a prohibition notice has been issued has not taken adequate action to remove the threat to health and safety that caused the notice to be issued; or (f) decides, under clause 36, to issue an improvement notice; an appeal against the decision may be made, by notice in writing, to the reviewing authority by: (g) the operator of the facility or any employer (other than the operator) who is affected by the decision; or (h) a person to whom a notice has been issued under subclause 17(2) or 36(1); or (j) the health and safety representative for a designated work group having a group member affected by the decision; or (k) a workforce representative in relation to the designated work group that includes a group member who is affected by the decision and who has requested the workforce representative to make the appeal; or (m) if there is no such designated work group, and a member of the workforce affected by the decision has requested a workforce representative in relation to the member to make the appeal—that workforce representative; or (n) a person who owns any workplace, plant, substance or thing to which the decision referred to in paragraph (a), (b), (c) or (f) relates. (2) If an OHS inspector, having conducted an inspection: (a) decides under clause 17 to cancel a provisional improvement notice; or (b) decides under clause 35 that the operator of a facility to whom a prohibition notice has been issued has taken adequate action to remove the threat to health and safety that caused the notice to be issued; an appeal against a decision may be made, by notice in writing, to the reviewing authority by: (c) the health and safety representative for a designated work group having a group member affected by the decision; or (d) a workforce representative in relation to the designated work group that includes a group member who is affected by the decision and who has requested the workforce representative to make the appeal; or (e) if there is no such designated work group, and a member of the workforce affected by the decision has requested a workforce representative in relation to the member to make the appeal—that workforce representative. (3) Subject to this clause, the making of an appeal against a decision referred to in subclause (1) or (2) does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary. (4) If the decision appealed against is a decision, under clause 36, to issue an improvement notice, the operation of the decision is suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary. (5) If the decision appealed against is a decision of an OHS inspector, under clause 17, to confirm or vary a provisional improvement notice whose operation has been suspended pending the inspection of the matter to which the notice relates, the operation of the notice is further suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary. (6) The reviewing authority may affirm or revoke the decision appealed against under subclause (1) or (2) and may, if it revokes the decision, substitute such other decision of the kind appealed against as it thinks appropriate. (7) If the decision is varied, revoked, or revoked with the substitution of another decision, the decision is taken to have effect, and always to have had effect, accordingly. (8) If the decision appealed against is a decision, under clause 33, to take possession of plant, substance or a thing at a workplace, and the decision is not affirmed, the OHS inspector who made the decision must ensure that, to the extent that the decision is not affirmed, the plant, substance or thing is returned to the workplace as soon as practicable. #### 39 Notices not to be tampered with or removed (1) A person must not: (a) tamper with any notice that has been displayed under subclause 33(3), 34(3), 35(9) or 36(7A) while that notice is so displayed; or (b) remove any notice that has been so displayed: (i) in the case of a notice displayed under subclause 33(3)—until the plant or thing to which the notice relates is returned to the workplace from which it was removed; or (ii) in the case of a notice displayed under subclause 34(3), 35(9) or 36(7A)— before the notice has ceased to have effect. Penalty: 50 penalty units. (2) Subclause (1) does not apply if the person has a reasonable excuse. > Note 1: A defendant bears an evidential burden in relation to the matter in subclause (2), see subsection 13.3(3) of the Criminal Code. > Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility). (3) An offence against subclause (1) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. ### Division 2—Reports on inspections #### 40 Reports on inspections (1) If an OHS inspector has conducted an inspection, the OHS inspector must, as soon as practicable, prepare a written report relating to the inspection and give the report to the Safety Authority. (2) The report must include: (a) the OHS inspector’s conclusions from conducting the inspection and the reasons for those conclusions; and (b) any recommendations that the OHS inspector wishes to make arising from the inspection; and (c) such other matters, if any, as are prescribed. (3) As soon as practicable after receiving the report, the Safety Authority must give a copy of the report, together with any written comments that it wishes to make: (a) to the operator of the facility to which the report relates; and (b) if the report relates to activities performed by an employee of, or to any plant, substance or thing owned by, another person—that other person. (4) The Safety Authority may, in writing, request the operator or any other person to whom the report is given to provide to the Authority, within a reasonable period specified in the request, particulars of: (a) any action proposed to be taken as a result of the conclusions or recommendations contained in the report; and (b) if a notice has been issued under clause 35 or 36 in relation to work being performed for the operator or that other person—any action taken, or proposed to be taken, in respect of that notice; and the operator or that other person must comply with the request. (5) As soon as practicable after receiving a report, the operator of a facility must give a copy of the report, together with any written comment made by the Safety Authority on the report: (a) if there is a least one health and safety committee in respect of some or all of the members of the workforce—to each such committee; and (b) if there is no such committee in respect of some or all of the members of the workforce, but some or all of those members (in respect of which there is no such committee) are in at least one designated work group for which there is a health and safety representative—to each such health and safety representative. ## Part 5—Miscellaneous #### 41 Notifying and reporting accidents and dangerous occurrences (1) If, at or near a facility, there is: (a) an accident that causes the death of, or serious personal injury to, any person; or (b) an accident that causes a member of the workforce to be incapacitated from performing work for a period prescribed for the purposes of this paragraph; or (c) a dangerous occurrence; the operator must, in accordance with the regulations, give the Safety Authority notice of, and a report about, the accident or dangerous occurrence. (2) Without limiting the provision that may be made by regulations for the purposes of this clause, the regulations (not being regulations made for the purpose of paragraph (1)(b)) may prescribe: (a) the time within which, and the manner in which, notice of an accident or dangerous occurrence is to be given, and the form of such a notice; and (b) the time within which, and the manner in which, a report of an accident or dangerous occurrence is to be given, and the form of such a report. #### 42 Records of accidents and dangerous occurrences to be kept (1) The operator of a facility must maintain, in accordance with the regulations, a record of each accident or dangerous occurrence in respect of which the operator is required by clause 41 to notify the Safety Authority. (2) Without limiting the provision that may be made by regulations for the purposes of this clause, the regulations may prescribe: (a) the nature of the contents of a record maintained under this clause; and (b) the period for which such a record must be retained. #### 43 Codes of practice (1) The regulations may prescribe codes of practice for the purpose of providing practical guidance to operators of facilities and employers (other than such operators) of members of the workforce at facilities. (2) A person is not liable to any civil or criminal proceedings for contravening a code of practice. #### 44 Use of codes of practice in proceedings If, in any proceedings for an offence against this Schedule or the regulations, it is alleged that a person contravened a provision of this Schedule or the regulations in relation to which a code of practice was in effect at the time of the alleged contravention: (a) the code of practice is admissible in evidence in those proceedings; and (b) if the court is satisfied, in relation to any matter which it is necessary for the prosecution to prove in order to establish the alleged contravention, that: (i) any provision of the code of practice is relevant to that matter; and (ii) the person failed at any material time to comply with that provision of the code of practice; that matter is treated as proved unless the court is satisfied that in respect of that matter the person complied with that provision of this Schedule or the regulations otherwise than by complying with the code of practice. #### 45 Interference etc. with equipment etc. (1) A person must not perform an act that results in the interference with, or the rendering ineffective of, any protective equipment or safety device provided for the health, safety or welfare of members of the workforce at a facility which the person knew (or ought reasonably to have known) was protective equipment or a safety device. Penalty: Imprisonment for 6 months. (2) Subclause (1) does not apply if the person has a reasonable excuse. > Note 1: A defendant bears an evidential burden in relation to the matter in subclause (2), see subsection 13.3(3) of the Criminal Code. > Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility). #### 46 Members of workforce not to be levied The operator of a facility, or an employer (other than the operator) of members of the workforce at a facility, must not levy, or permit to be levied, on any member of the workforce, any charge in respect of anything done or provided in accordance with this Schedule or the regulations in order to ensure the health, safety or welfare of persons at or near the facility. Penalty: 250 penalty units. #### 48 Employer not to dismiss etc. employees on certain grounds (1) An employer (whether the operator or another person) must not: (a) dismiss an employee; or (b) perform an act that results in injury to an employee in his or her employment; or (c) perform an act that prejudicially alters the employee’s position (whether by deducting or withholding remuneration or by any other means); or (d) threaten to do any of those things; because the employee: (e) has complained or proposes to complain about a matter concerning the health, safety or welfare of employees at work; or (f) has assisted or proposes to assist, by giving information or otherwise, the conduct of an inspection; or (g) has ceased, or proposes to cease, to perform work, in accordance with a direction by a health and safety representative under paragraph 26(1)(b) or (3)(c), not being a cessation or proposed cessation that continues after: (i) the health and safety representative has agreed with a person supervising the work that the cessation or proposed cessation was not, or is no longer, necessary; or (ii) an OHS inspector has, under subclause 26(5), made a decision that has the effect that the employee should perform the work. Penalty: $25,000. (2) In proceedings for an offence against subclause (1), if all the relevant facts and circumstances, other than the reason for an action alleged in the charge, are proved, it lies upon the defendant to establish that the action was not taken for that reason. > Note: A defendant bears a legal burden in relation to the matter in subclause (2), see section 13.4 of the Criminal Code. #### 49 Institution of prosecutions (1) Proceedings for an offence against this Schedule or against regulations set out in or prescribed for the purposes of subsection 140H(2) may be instituted by the Safety Authority or by an OHS inspector. (2) A health and safety representative for a designated work group may request the Safety Authority to institute proceedings for an offence against this Schedule, or for an offence against regulations referred to in subclause (1), in relation to the occurrence of an act or omission if: (a) a period of 6 months has elapsed since the act or omission occurred; and (b) the health and safety representative considers that the occurrence of the act or omission constitutes an offence against this Schedule or those regulations; and (c) proceedings in respect of the offence have not been instituted. (2A) A workforce representative in relation to a designated work group may request the Safety Authority to institute proceedings for an offence against this Schedule, or for an offence against regulations referred to in subclause (1), in relation to the occurrence of an act or omission if: (a) a period of 6 months has elapsed since the act or omission occurred; and (b) the workforce representative considers that the occurrence of the act or omission constitutes an offence against this Schedule or those regulations; and (c) proceedings in respect of the offence have not been instituted; and (d) a group member included in the group requests the workforce representative to request the Safety Authority to institute the proceedings. (2B) A request under subclause (2) or (2A) must be in writing. (3) The Safety Authority must, within 3 months after receiving the request, advise the health and safety representative or the workforce representative, as the case may be, whether proceedings under subclause (1) have been or will be instituted, and, if not, give reasons why not. #### 50 Conduct of directors, servants and agents (1) If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of actual or apparent authority; and (b) that the director, servant or agent had the state of mind. (2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of actual or apparent authority is taken to have been engaged in also by the body corporate unless it establishes that it took reasonable precautions and exercised due diligence to avoid the conduct. (3) If it is necessary to establish the state of mind of an individual in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a servant or agent of the individual within the scope of actual or apparent authority; and (b) that the servant or agent had the state of mind. (4) Any conduct engaged in on behalf of an individual by a servant or agent of the individual within the scope of actual or apparent authority is taken to have been engaged in also by the individual unless the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct. (5) If: (a) an individual is convicted of an offence; and (b) he or she would not have been convicted of the offence if subclauses (3) and (4) had not been enacted; he or she is not liable to be punished by imprisonment for that offence. (6) A reference in subclause (1) or (3) to the state of mind of a person includes a reference to: (a) the person’s knowledge, intention, opinion, belief or purpose; and (b) the person’s reasons for the intention, opinion, belief or purpose. (7) This clause has effect for the purposes of any proceeding for an offence against this Schedule or regulations set out in or prescribed for the purposes of subsection 140H(2). #### 51 Act not to give rise to other liabilities etc. This Schedule does not: (a) confer a right of action in any civil proceeding in respect of any contravention of a provision of this Schedule or regulations set out in or prescribed for the purposes of subsection 140H(2); or (b) confer a defence to an action in any civil proceeding or otherwise affect a right of action in any civil proceeding. #### 52 Circumstances preventing compliance with Schedule may be defence to prosecution It is a defence to a prosecution for refusing or failing to do anything required by this Act or regulations set out in or prescribed for the purposes of subsection 140H(2) if the defendant proves that it was not practicable to do it because of an emergency prevailing at the relevant time. > Note: A defendant bears a legal burden in relation to the matter in this clause, see section 13.4 of the Criminal Code. #### 53 Regulations—general (1) Without limiting the generality of the power to make regulations for the purposes of this Schedule, the regulations may prescribe: (b) procedures for the selection of persons, under clause 23, as members of health and safety committees, to represent the interests of members of the workforce at a facility; and (c) procedures to be followed at meetings of health and safety committees; and (d) the manner in which notices are to be served under this Schedule or the regulations; and (e) forms for the purposes of this Schedule or the regulations. (2) If the Governor‑General is satisfied that: (a) a power, function or duty is conferred or imposed on a person under a law of the Commonwealth or of a State or Territory; and (b) the proper exercise of the power or performance of the function or duty is or would be prevented by this Schedule or a provision of this Schedule; regulations made for the purposes of this subclause may declare that this Schedule, or the provision, as the case may be, does not apply to that person, or does not apply to that person in the circumstances specified in the regulations. (3) Regulations made for the purposes of subclause (2) do not remain in force for longer than 5 years after they commence, but this subclause does not prevent the making of further regulations of the same substance. (4) In subclause (2), this Schedule includes regulations made for the purposes of this Schedule.